Frequently Asked Criminal Law Questions- Part II

CRIMINAL DEFENSE FORUM

By: Mark Eiglarsh

If the police don't read a suspect his/her rights, will the case be dismissed?No. Under the law, the only scenario under which an arresting officer is required to read an accused his or her rights is when there is a "custodial interrogation." Custodial interrogation, as defined in the Miranda decision, is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." No warnings are necessary unless both situations exist. The suspect must be 1) in custody and a law enforcement officer must 2) initiate questioning.

Can a corporation be found criminally liable?Yes. In the past, corporations were generally viewed as incapable of forming the requisite intent necessary to commit crimes. Through the years, this thought has changed drastically as corporations have been successfully prosecuted for numerous specific intent offenses. For a corporation to be held criminally responsible, the crime typically must have been committed by either an officer and/or an employee authorized to act on behalf of the company in the scope of their employment. Corporations may also be held responsible for their role in various criminal conspiracies.

What is the Jimmy Ryce Act?The Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators' Treatment and Care Act (Jimmy Ryce Act) was signed into law on May 19, 1998 by Governor Lawton Chiles. The act, which became effective January 1, 1999, seeks to have "sexually violent predators" indefinitely and involuntarily committed to a "secure facility for treatment." It applies only to those persons who have already been convicted of a sexually violent crime and only after the offenders have already served their criminal sentences in jail and/or prison.

When is it unlawful for a law enforcement officer to detain a suspect?Stops based upon factors which amount to little more than mundane or unremarkable descriptions of everyday, law abiding activities, are not permissible. Additionally, mere or bare suspicion cannot support a detention. Officers are required to have a reasonable suspicion, which is well founded, articulable, and based on objective facts that the suspect was involved in criminal activity.

What is Sealing and Expunging a record, and what's the difference between the two?A person whose criminal history record has been sealed and/or expunged, may lawfully deny those events covered by the sealed or expunged record except when dealing with the following types of agencies: The Florida Bar, health care administrators, any and all law enforcement agencies, The Department of Children and Families, and those agencies responsible for licensing teachers. Any unauthorized release of information contained in a sealed and/or expunged record constitutes a first degree misdemeanor, punishable by up to a year in jail. (See F.S. 943.0585(4)(c))

After a record has been expunged pursuant to Florida Statute 943.0585, the record must be "physically destroyed or obliterated." However, The Florida Department of Law Enforcement will maintain a copy of these records in all cases. On the other hand, a record that has been sealed under Florida Statute 943.059, will be preserved, but inaccessible to any person not having legal right of access to the record. Therefore, once a record has been sealed, the agency in possession of the documents may still retain copies of the paperwork; however, it must keep the records "confidential."

What is The Exclusionary Rule and are there any exceptions?The Exclusionary Rule requires the suppression at trial of evidence obtained directly or indirectly through government violations of the fourth, fifth, or sixth amendment. There are several exceptions to the rule. The Supreme Court held that evidence need not be suppressed when police obtained the evidence through objective good faith reliance on information that is later found to lack probable cause. Furthermore, even if police engaged in illegal investigatory activity, evidence will be admissible if it was discovered through a source independent of illegality. Finally, the court may admit illegally obtained evidence if the evidence inevitably would have been discovered through independent lawful means.

About The AuthorMark Eiglarsh is a former prosecutor who specializes in exclusively State and Federal criminal defense and forfeiture matters. An "AV Rated" attorney, Eiglarsh teaches litigation skills at the University of Miami School of Law. Mark can be contacted at the Law Offices of Mark Eiglarsh, at (305) 674-0003 and/or via e-mail at Mark@EiglarshLaw.com. His web address is www.EiglarshLaw.com.

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